XY v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Malcolm |
| Judgment Date | 12 January 2022 |
| Court | High Court of Justiciary |
| Docket Number | No 8 |
[2022] HCJAC 2
Lord Malcolm, Lord Turnbull and Lord Pentland
Justiciary — Evidence — Accused charged with lewd, indecent and libidinous practices and behaviours and rape of complainer when she was under age — Whether evidence of consensual sexual relationship when complainer was 17 years old relevant — Whether such evidence collateral — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 275
Section 274(1) of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’) provides that, in the trial of a person charged with certain sexual offences, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer, inter alia, “(b) has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge”. Section 275(1) provides that the court may, on application made to it, admit such evidence or allow such questioning if satisfied that, inter alia, “(a) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating– (i) the complainer's character …; (b) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and (c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited.”
The appellant was charged, inter alia, with using lewd, indecent and libidinous practices and behaviours in relation to AA, on various occasions, when she was aged between 13 and 15 years old and with raping AA, on various occasions, when she was aged between 14 and 15 years old, in the early 1980s. He made an application under sec 275 of the 1995 Act, seeking to elicit evidence that he had been in a consensual sexual relationship with AA when she was 17 years old. The preliminary hearing judge refused the application. The judge considered that the evidence sought to be elicited was irrelevant at common law. The appellant appealed.
The appellant argued that he should be allowed to present his case in full. The appellant did not deny that sexual activity had taken place, but his position was that it had taken place when AA was no longer under age. Were the application refused, he would not be able to indicate that sexual intercourse did not occur. He would not be able to suggest that it happened at a later date or dates. If the complainer gave details of sexual intercourse, he would not be able to tender an explanation consistent with his innocence. The jury would never be satisfied that sexual activity had not taken place when the complainer was aged between 13 and 15 years old if the appellant were not permitted to elicit evidence that such activity had occurred at a later date. The questioning of the complainer would be artificially restricted in a way likely to threaten the fairness of the proceedings.
Held that: (1) the touchstone for consideration of an application under sec 275 of the 1995 Act was that the evidence required to be admissible at common law, having a reasonably direct bearing on the issue at trial and collateral evidence was excluded unless it could be verified more or less instantly and could not be challenged (para 44); (2) the evidence sought to be elicited was not instantly verifiable as the complainer disputed that she had been in a consensual sexual relationship with the appellant when she was 17 years old (paras 24, 45); (3) the issue at trial had been more than merely temporal as the conduct alleged in the charges went significantly beyond consensual sexual activity, evidence of which the appellant sought to elicit. The Crown alleged a classic case of grooming, with repeated and escalating conduct, and sexual abuse of a more extensive and perverted nature than the consensual sexual activity which the appellant said had taken place. The appellant denied significant aspects of what the complainer would be expected to say. He denied grooming the complainer. It was incorrect to suggest that the jury would be asked simply to consider whether the evidence spoken to by the complainer had occurred between the dates specified in the libel, when she was aged between 13 and 15 years old, or later, when she was 17 years old, and the jury would not be asked to make a binary choice of that type (paras 23, 25, 26, 47); (4) the real issue at trial would be whether the conduct alleged occurred between the dates specified in the libel. The evidence sought to be elicited had no relevant connection with whether the Crown could establish that the appellant had sexually abused the complainer between those dates. Allowing the evidence would inevitably open up a discrete chapter at trial on a collateral issue and would involve more than suggesting to the complainer that she was wrong about dates and would cast no light on whether the conduct alleged in the charges had occurred (paras 26–28, 45); (5) not admitting the evidence would not impair the appellant's ability to present his defence as he would be able to challenge all the evidence and testify that no sexual activity had occurred between the dates specified within the libel and would be able to explain the true nature of his relationship with the complainer at the time libelled in the charges (para 46); and appeal refused.
Dissenting (per Lord Malcolm) that there was a dispute as to when certain events had taken place and it was not a matter of whether something happening before or after the date of a libel cast light on the events that day. The application did not concern two or more unrelated events. Where the date of an alleged offence was critical to criminality, evidence directed at that issue was admissible (para 5).
M v HM Advocate (No 2) 2013 SLT 380 and CH v HM Advocate2021 JC 45applied.
Advocate (HM) v JW [2020] HCJ 11; 2020 SCCR 174; 2020 GWD 11-156
CH v HM Advocate [2020] HCJAC 43; 2021 JC 45; 2020 SLT 1063; 2020 SCCR 410
Kerseboom v HM Advocate [2016] HCJAC 51; 2017 JC 47; 2016 SCCR 386; 2016 SCL 839; 2016 GWD 29-518
M v HM Advocate (No 2) sub nom CJM v HM Advocate [2013] HCJAC 22; 2013 SLT 380; 2013 SCCR 215; 2013 SCL 361
Moorov v HM Advocate 1930 JC 68; 1930 SLT 596
Oliver v HM Advocate [2019] HCJAC 93; 2020 JC 119; 2020 GWD 3-48
Thomson v HM Advocate HCJAC, 13 December 2019, unreported
XY was indicted at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on eight charges alleging sexual offences against children in the 1980s and 1990s. He made an application under sec 275 of the Criminal Procedure (Scotland) Act 1995 which sought to elicit evidence that he had been in a consensual sexual relationship with one of the complainers, between 14 April 1985 and 30 November 1985, when she was 17 years old. On 3 August 2020, the preliminary hearing judge (Lord Beckett) refused XY's application on the basis that it was irrelevant at common law. The appellant appealed under sec 74 of the 1995 Act to their Lordships in the High Court of Justiciary.
The cause called before the High Court of Justiciary, comprising Lord Malcolm, Lord Turnbull and Lord Pentland, for a hearing, on 9 December 2021.
At advising, on 12 January 2022—
Lord Malcolm— [1] I am grateful to Lord Pentland for setting out the background and the circumstances of this appeal. However I regret I am unable to adhere to the view of your Lordships that it should be refused.
[2] The appeal raises a stark issue not addressed in the many recent cases concerning applications under sec 275 of the Criminal Procedure (Scotland) Act 1995 (cap 46). It can be expressed as follows: If an accused person accepts that sexual activity as described in an indictment occurred but at a later date when the complainer was of age, is such a line of defence to be allowed?
[3] The point can be illustrated by a hypothetical example. Mr A is charged with having had unlawful sex with a child. This is said to have occurred in 1983 when the complainer was 15 years of age. Mr A's position is that he did have sex with the complainer but in 1984 when she could consent. When this scenario was put to the Advocate-depute he submitted that any questioning or evidence in support of this defence would be inadmissible at common law as being irrelevant or as raising a collateral issue.
[4] It is true that the circumstances of this case are more complicated than the hypothesis. For example charge 2 is one of rape, though it can be noted that before the preliminary hearing judge the Crown indicated that in the light of the complainer's account it is likely that it will be relying on the alternative verdict of unlawful intercourse with a child. And there are some parts of the libel which are denied outright — hence the amendment to the...
To continue reading
Request your trial